The State Ratifying Conventions and Their Impact on James Madison’s Proposals in the First Congress

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Proposed Amendments and Bill of Rights from State Ratifying Conventions

Power Vested in the People

♦

♦

♦

♦

Life, Liberty, Property, Happiness

♦

♦

♦

♦

♦

Alter/Abolish/Create Government

♦

♦

♦

♦

Representation/Census/Taxation

♦

♦

♦

♦

♦

♦

♦

Legislative Compensation

♦

♦

♦

♦

Civil Rights and Religious Belief

No Established Religion/Favored Sect

♦

♦

♦

♦

♦

Rights of Conscience/Free Exercise

♦

♦

♦

♦

♦

Freedom of Speech

♦

♦

♦

Freedom of Press

♦

♦

♦

♦

Freedom of Assembly

♦

♦

♦

♦

Freedom of Petition

♦

♦

♦

♦

Keep and Bear Arms/Militia

♦

♦

♦

♦

♦

Arms and the Religiously Scrupulous

♦

♦

♦

♦

Quartering of Troops

♦

♦

♦

♦

♦

Double Jeopardy

♦

Self-Incrimination

♦

♦

♦

Due Process of Law

♦

♦

♦

♦

Takings/Just Compensation

No Excessive Bail and Fines

♦

♦

♦

♦

No Cruel and/or Unusual Punishments

♦

♦

♦

♦

No Unreasonable Searches/Seizures

♦

♦

♦

♦

Speedy/Public Trial in Criminal Cases

♦

♦

♦

♦

Nature of Accusation

♦

♦

♦

♦

Confrontation of Accusers

♦

♦

♦

♦

Compulsory Witness

♦

♦

♦

♦

Assistance of Counsel

♦

♦

♦

♦

Rights Retained by the People

No State & Equal Right of Conscience

No State & Freedom of Press

No State & Trial by Jury (Criminal)

$ Limitation on Appeals

♦

♦

Common Law and Jury Trial

♦

♦

♦

♦

♦

♦

♦

(Local) Impartial Jury for All Crimes

♦

♦

♦

♦

♦

Various Trial “Requisites”

♦

♦

♦

♦

♦

♦

♦

Grand Jury for Loss of Life or Limb

♦

♦

♦

Non-Local Trial of Crimes

♦

Separation of Powers

♦

♦

♦

♦

♦

Reservation of Non-Delegated Powers

♦

♦

♦

♦

♦

♦

♦

♦

Totals

5

6

9

3

27

2

28

3

29

2

27

The first column contains the 39 items on Madison’s June 8 list. The remaining columns contain the recommendations agreed to by seven state ratifying conventions after deliberation and a formal vote. We are interested in charting the relationship between the recommendations put forward by the ratifying conventions and what Madison actually proposed on June 8.

List of Madison’s Proposals

Power Vested in the People

Life, Liberty, Property, Happiness

Alter/Abolish/Create Government

Representation/Census/Taxation

♦

♦

Legislative Compensation

Civil Rights and Religious Belief

No Established Religion/Favored Sect

Rights of Conscience/Free Exercise

♦

Freedom of Speech

♦

Freedom of Press

♦

♦

Freedom of Assembly

Freedom of Petition

Keep and Bear Arms/Militia

♦

Arms and the Religiously Scrupulous

Quartering of Troops

♦

Double Jeopardy

Self-Incrimination

♦

Due Process of Law

♦

Takings/Just Compensation

No Excessive Bail and Fines

♦

No Cruel and/or Unusual Punishments

♦

No Unreasonable Searches/Seizures

♦

♦

Speedy/Public Trial in Criminal Cases

♦

Nature of Accusation

♦

Confrontation of Accusers

♦

Compulsory Witness

♦

Assistance of Counsel

♦

Rights Retained by the People

No State & Equal Right of Conscience

No State & Freedom of Press

No State & Trial by Jury (Criminal)

$ Limitation on Appeals

♦

Common Law and Jury Trial

♦

♦

(Local) Impartial Jury for All Crimes

♦

♦

Various Trial “Requisites”

♦

♦

Grand Jury for Loss of Life or Limb

Non-Local Trial of Crimes

Separation of Powers

♦

Reservation of Non-Delegated Powers

♦

♦

♦

Totals

20

8

2

We have excluded the list of suggested rights that appeared at the Pennsylvania and Maryland ratifying conventions from what we shall call the official list of seven because these two ratifying conventions did not officially agree to a list of recommendations to be issued to the First Congress. Nevertheless these suggestions from discontented Antifederalists have been placed at the side so that the reader can grasp the extent to which the issue of the absence of a bill of rights was a concern at 9/13 of the state ratifying conventions, the exact ratio needed for the ratification of the Constitution. And only 1/2 and 1/5 of the list generated by the discontented Antifederalists in Pennsylvania and Maryland made it onto Madison’s list.

The Pennsylvania Minority Report is important because of its surprising Antifederalist prudence. It gives some apparent credibility to the claim: “If it weren’t for the Antifederalists there would be no Bill of Rights.” The Maryland Ratifying Convention is important for its attempt to secure what it calls the British tradition. The Harrisburg Proceedings are important not for its content but because its main point is to call for a second Convention to amend the work of the Framers. This meeting no doubt encouraged Madison in his efforts to have the first Congress do the amending under his guidance and supervision.

Massachusetts and New Hampshire are important because these proposals did have a strong bearing on ratification in these two states, but were not vital for what finally appeared on Madison’s list of 39 rights. 5/39 from Massachusetts and 9/39 from New Hampshire are hardly influential numbers. The same is true from South Carolina where only 6/39 appears on Madison’s list. But, again, these three states were vital for the ratification of the Constitution.

The story is far different when we turn to Virginia and New York. Over 2/3 of Madison’s June 8 proposals have a strong affinity with the recommendations from these two states. Moreover, there is an even stronger correlation between the list generated by these two state ratifying conventions and the final United States Bill of Rights passed by Congress and the state legislatures.

The third group consists of North Carolina and Rhode Island. Both lists seem as strong in their affinity with Madison’s list as do the lists of Virginia and New York. But there is a twist in the story. Virginia and New York were “inspirational” rather than “confirmational” since their lists took place before June 8. North Carolina and Rhode Island were “confirmational” rather than “inspirational,” because they were announced way after June 8 and after the conclusion of the first session of the First Congress.

In conclusion, to the extent that the list of 39 rights that Madison introduced in the First Congress was influenced by the dynamics of the ratification campaign, then it is necessary and sufficient to emphasize the Virginia and New York ratifying conventions. And we need to recognize that there is something uniquely Madison about Madison’s June 8 list, namely, restraints on the state governments with respect to religion, press, and juries. These restraints made their way through the House of Representatives but were overturned in the Senate. It is also worth noting that another inspirational impact on Madison’s list comes from George Mason’s Virginia Declaration of Rights and Jefferson’s Declaration of Independence. Also influential were the exchange of letters between Madison and Jefferson over the need for, and the content of, a Bill of Rights.